Virginia Fly Angler Loses Jackson River Case

With the exception of his two attorneys, Dargan Coggeshall stood in the courtroom completely alone as the decision in North/South Development v Crawford was handed down. The avid Virginia fly angler has been embroiled in a lawsuit for the past two years over the use of the Jackson River, and in particular his ability (and that of the public) to wade in a certain section of the Jackson River. Considered one of the best wild trout fisheries in the east, and the only trout stream in the Old Dominion large enough to float a drift boat, the Jackson River draws visiting anglers from multiple states.

Virginia’s Jackson River

Friction between landowners and anglers is nothing new along the Jackson River and started almost immediately with the creation of the Gathright Dam. The dam built in the late 1970’s turned what was once a warm and shallow water bass stream, into a blue ribbon trout fishery with browns occasionally pushing 20 inches. Kayaks, rafters and float tubers are also frequent visitors to the river and local businesses seem eager to draw tourist to the tiny towns of Clifton Forge and the larger town of Covington.

Coggeshall’s trouble began in June of 2010 when he was charged with criminal trespassing by North South Development, (www.fishntheedge.com) a small family owned company which sells river front lots. According to the owner of the company Coggeshall was warned multiple times not to return to an area which they had posted as private property between two public access points from Smith Bridge to Indian Draft. Coggeshall who had fished the river for years claimed he had every right to be in the river since the Virginia Department of Game and Inland Fisheries (VDGIF) advertised it as public water. Indeed multiple signs still exists at the public put ins along the river, and on state created maps informing anglers they could fish in the same area where the angler was charged with trespassing.

Once Coggeshall was served with a criminal charge of trespassing he contacted the VDGIF and was shocked to find out that while they had been happy to sell him a license, they had no authority to represent him in court. The embattled angler eventually had his day in criminal court and was relieved when the case was nol-prossed due to lingering questions as to river bed ownership. Failing a criminal conviction however, North/South Development refilled civil charges and sued the angler for $10,000. During his ordeal the angler eventually contacted the Virginia Attorney General’s Office as well, but was told since the state was not a party to the case they had no reason to be in court much less represent him.

Sportsmen around the state were outraged to discover a license holding angler, who was obeying game laws while fishing in waters the state claimed was public, would not be aided in any way by state authorities. Members of several TU chapters, private citizens as well as companies like Patagonia chipped in funds to mount a legal defense (www.virginiariversdefensefund.org), but this effort proved to be in adequate and in the end and the angler stated lack of funding as a major reason he was abandoning his case.

Prior to and during the case the riparian landowner claimed to have a chain of title leading back to a pair of 18th century land grants issued by King George II. Virginia law which asserts state ownership of river bottom, didn’t occur until 1802 long after numerous crown grants had been issued. These grants have led to some landowners claiming the state has over stepped its authority by intentionally sending sportsmen on to private property. VDGIF officials recently disclosed in a white paper written in response to concerns about the case, that state officials presume to own the state’s riverbeds. Uncertainty remains however as to which riverbeds they specifically own in whole or in part due to the expense of investigating such crown grant claims.

Crown grant or king’s grant cases as they are often called, rarely lead to litigation in Virginia. Thus named because the land grants were originally deeded from monarchs in Great Britain, king’s grants have become a flash point between landowners and river users across the state. Virginia was one of the original 13 colonies and much of its laws are rooted in English Common Law, especially as it pertains to property. Two previous cases involving anglers on the Jackson River were decided in 1955 and 1996 and in both cases landowners won. Though the state of Virginia claims to have ultimate ownership, these riparian landowners proved prima-facia title, a legal term meaning they “appear on the face” to have superior claim to river bottom than the public. The ultimate decision as to who has actual ownership of the riverbed was left undecided since the state of Virginia refused t to enter the case.

Some have speculated that since North/South v Crawford was a civil case, it doesn’t apply to others in the general public. This assumption is incorrect and those that return to this section of the river and touch bottom without prior approval of North/South Development are now subject to criminal prosecution. Some in the sporting community have decided not to return to the Jackson River and all and some fly shops have stopped taking clients there stating the ambiguity of the situation. There is however several miles of river below the dam which are not posted by landowners and these owners have no objection to anglers fishing as long as they stay in the river.

Sportsmen across the state have grown more concerned as they’ve discovered the state is unsure as to what its ownership rights are as it pertains to riverbeds. Anglers have also expressed their displeasure at not being certain where they can and can’t fish if VDGIF signs are unreliable. This coupled with the states reluctance to assist anglers who are sued while following all VDGIF rules and regulations have led some sportsman to discuss burning their fishing licenses in a public protest. Anglers are hopeful the state’s legislative body the General Assembly will be willing to provide clarity in this coming session. Thus far however, the only legislator who has shown any leadership on the issue is Delegate Scott Lingamfelter (R) www.va31st.com of Fauquier County. Lingamfelter, head of Virginia’s Sportsmen’s Caucus, is running for Lieutenant Governor in 2013. Lingamfelter has stated he is very concerned with the ambiguity of the situation where state inaction thus far has pitted landowners and sporting citizens against each other. In regards to crown grants Lingamfelter said “I’m ready, willing and eager to bring something about this issue to the legislature.” Though an avid sportsman himself, Lingamfelter is keen on protecting property rights and is known for his balanced approach to tough issues.

Anglers in Virginia are still trying to determine how this case may affect other rivers in the state where crown grants are known to exist. Popular rivers like the James, Shenandoah, Cowpasture, Rappahannock, Hazel and York are all subject to crown grants. While anglers are currently barred from touching bottom on this new section of the Jackson River between Smith Bridge and Indian Draft, they can still fish there from a boat since the act of fishing was not before the court. While Coggeshall agreed he would not touch bottom on that section of the river in the future, he was not required to pay damages. Virginia fly anglers have watched North South Development vs Crawford since the beginning and no doubt some will return to the river while avoiding this section. Others however have sworn not to return to the Jackson River at all, fearing they too may end up standing in court all alone.

Beau Beasley (www.beaubeasley.com) is an award winning outdoor writer and author of two popular guide books. He broke the original story on the current Jackson River case and is the only journalist to get in-depth interviews with both the angler and the landowner.

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mtnd0c

Sad conclusion. Defendants acquiescing to a court order because the Commonwealth’s Attorney General refused to support its own published maps and regulations. This is a AG Ken Cuccinelli’s mistake and will serve to chill the rights of anglers everywhere, When will a court hear the merits of a public whose rights to navigable water displace the rights confirmed by the pre-revolutionary King George the III? Landowners will continue to grab until fishing will require a beat ticket everywhere.

Virginia sportsman

The decision was the correct one. Private property rights were protected and upheld in view of two hundred + years of law. What is sad, however, is the VDGIF and their pitiful role in instigating the problem, forcing the landowners to sue to protect their land and then not coming in to defend the same fishermen that they sent in on private property. That’s what is sad. There should be some penalty for what these bumbling bureaucrats caused.

Elizabeth

This was the correct decision. Private property rights were protected and the law (established over 200+ years was upheld. Was is sad is the pitiful VDGIF who instigated the problem by inflaming the landowners then would not come in to defend the very fishermen they sent in on private property. There should be a penalty for this rogue, incompetent bureaucratic agency.

TakeTheFly

While the part about the shame on VDGIF is true, your assumption about what happened in the court room is off. The judge did not have to even go back to the 1802 statute to justify the simple trespass charge. As a matter of fact, the crown grant possessed by the plaintiffs didn’t even come into play in the judge’s ruling. The developer’s current deed referenced river bottom and that was enough (color of title) to uphold a simple civil trespass charge against the anglers (strangers to the title). Description of “river bottom” only appeared in the developer’s chain of deeds in the 1940s and no one knows how it got included, but without the state coming in to say it had a claim to that bottom, the anglers never stood a chance. So, see, the judge didn’t even have to go back to the crown grant for evidence of who had a superior claim. Anyone riparian landowner in the Commonwealth, who has a deed somewhere in their chain that mentions river bottom, could sue a user for simple trespass because they possess color of title. They would likely win an injunction if the state refuses to assert its ownership to that same piece. That is what this case showed, and it’s scary.

Elizabeth

Take the Fly
Not and assumption… you are simply WRONG about this. I read the Judge’s Partial Summary judgement on the website of the defendants and the Judge clearly referenced the landowners uncontested chain of title, the uncontested will of William Mann, Sr. and the wording of the Abercromby Crown Grant. These references appear to have been critical in determining the landowners’ prima facie title and ownership of the stream bed. May not have been necessary but nevertheless incorrect for you to say that these documents “didn’t even come into play.”
The trespassing fishermen lost… as I said: the correct decision! If the state never owned this stretch (or even others) why is it wrong for an owner, paying taxes etc. to sue a trespasser?
Defendants should have gone after the VDGIF. They didn’t… their BIG mistake!

Elizabeth

TakeTheFly

Then why did the judge not give the plaintiffs the fee simple ownership status for which they asked in their partial summary motion? If the grants were so rock solid, then the judge should have upheld their motion for fee simple ownership, case closed, bottom is private. He didn’t. He specifically ruled that the neurosurgeon and developer had only color of title (or prima facie title), not outright title. Uncontested doesn’t mean outright. It means the state (or some other party) hasn’t stepped up. That was the problem in this case and the judge recongnized it. He could have ended the dispute, but he didn’t. He just put a bandaid on it with an injunction against two anglers.
BTW, on what people pay taxes has nothing to do with legal ownership, that just means a property tax bureaucrat drew lines around something and sent a bill to the person whom he/she thought owned that property enclosed in the lines. I’m sure thousands of people in this state are paying taxes on property they don’t technically own, because it is the job of the tax assessor to maximize the tax revenue for his/her county, not determine legal ownership.
If you do reply, please start with a response to my initial question. No one seems to be able to answer it.

JG46

Did the landowners’ Complaint seek to “quiet tile,” against all the
world? I thought it was against an individual, for damages for prior
trespass (which they waived) and an injunction against further trespass
(which the defendant in the end gave up on opposing after the partial
summary judgment). If that’s right, the reason the court didn’t declare
the riparian owners’ fee simple title to the streambed is not that they
had not proven they had it, but that such a declaration was unnecessary
to, and not part of, the relief sought in the Complaint. Asking for
something additional in a motion for partial SJ is not a good way to get
it; the court didn’t deny that request, it properly ignored it. Does
this “respon[d] to [your] initial question”?

I’ll agree with
anyone who argues that granting private ownership of floatable rivers
(including exclusive fishing rights) along with riparian ownership is
terrible policy, but as the law before 1804 did not prohibit the
representative of the public ownership from conveying away the public’s
rights in the river and bottom, and the Crown was proven to have done so
as to these stretches of the Jackson, it should come as no surprise
that the law continues to validate that private ownership.

By the
way, in response to David R. from TX, I believe the state DID stop
stocking the River with trout, through not only the stretch of the
plaintiff landowners but quite a longer stretch, as soon as the
proceedings on this case started. Can anyone confirm this?

Disgusted

Elizabeth,

All of this proper legal-esque jabber aside, you are one despicable jerk.

Presumably a landowner on the river. What sort of unpatriotic, selfish, “highbrow” entitlement mentality are you people born of? The commonwealth bungled terribly by not making extremely clear that while existing property deeds should be kept intact post Revolutionary War, it is goddamned common sense that no defeated monarch blanket grants of special rights would be honored above and beyond the reasonable sensibilities that parallel the status quo as applies to everyone else.. I.e. the right to own land for your home,business,etc.

In short, you and everyone like you make me sick. Get off your high horse and recognize that your position on this matter is tantamount to tyranny against your state and our society. Too bad it’s not still monarchy so we could simply persuade some lunatic “Lord” who loves fishing to have your kind hanged on a whim, or at least exiled.

For shame.

Elizabeth

Quite simple… the judge did not want to be overturned. All of the issues in this case had already been decided in previous cases. The only thing the judge had to do was review the validity of the chain of title and the authenticity of the grants. He relied on previous decisions and followed their course. The state never challenged the action and never needed the judge’s permission to enter this case. The state does indeed protect the Commonwealth’s property through the attorney general but did not enter this case despite heavy pressure to do so. Why? I don’t know but why did they also chose not to enter previous Supreme Court cases that involved landowners and fishermen on the Jackson? Could it be that they know they’d lose and don’t want that precedent set? By the way, no “fee simple ownership” determinations in the other case were necessary. TTF, surely you protest too much!

Clearly this ruling is not simply an injunction against two anglers. Just as Kraft v. Burr was not limited to Kraft, anyone treading or wading or even fishing in this area is now at risk of prosecution. Some folks will never accept this ruling (even if it went to the Supreme Court) because they just can’t comprehend that private individuals could own the property under a river. In my opinion that’s their problem!
The trespassers got what they deserved.

Elizabeth

joseph marshall

The State of Va. should make sure that any money that is spent on this section of the river is paided back to the State by the so called Landowners. They want to own it then they need to pay the expense of maintaining it.

David

They already pay realestate taxes. You don’t pay anymore than the expense of
a license to maintain it but you want them to pay double.
You’re nothing but a bleeding liberal that wants what belongs to someone else

David R.

I have been following this case. I’m from Texas we were planning on coming to Virginia for fishing and seeing the country. This case has made us pick a different state like Ark or Mo. instead. I can’t believe that Kings grants are still in effect after we fought the Amer. Rev. to get out from under English rule. The state needs to pull all of it’s web sites and fishing folders out of the stores and not sell fishing permits since they will not help people make sure they are fishing in a legal watershed. The state should quit stocking Trout on the Jackson River till the so called Grant owners start paying for the fish and all other expenses involved, just so they can catch them for their own.

David

The war was not fought to take away what belonged to the citizens.
Washington, Jefferson, Madison, Franklin, etc. etc. did not have to relinguish
any of their property. Plenty of land has been handed down from generation to
generation. This is no different. I fish the Jackson every year and I have no
problem with respecting what belongs to someone else. If this bothers you,
find somewhere else to fish. Virginia doesn’t need you

Disgusted

Elizabeth,

All of this proper legal-esque jabber aside, you are one despicable jerk.

Presumably a landowner on the river. What sort of unpatriotic, selfish, “highbrow” entitlement mentality are you people born of? The commonwealth bungled terribly by not making extremely clear that while existing property deeds should be kept intact post Revolutionary War, it is goddamned common sense that no defeated monarch blanket grants of special rights would be honored above and beyond the reasonable sensibilities that parallel the status quo as applies to everyone else..

In short, you and everyone like you make me sick. Get off your high horse and recognize that your position on this matter is tantamount to treason against your state and our society.

A few snakehead fish dropped in near these greedy landowners will soil their little fishing heaven for good. Maybe I’ll pay a visit next time I pass through from TN. Not a problem says I.

AnnieMapleley

I’m going to buy some land on both sides of the Mississippi. I will permit tows and other boats to pass, but they’ll have to pay a hefty toll. I’ll use my millions to buy oceanfront on both sides of the Atlantic. All ships using the Atlantic will be allowed to continue to do so, but they’ll have to pay a hefty toll. I’ll use my billions to buy the land upriver of the Jackson River lords. I’ll also buy some untreated waste from a city and get rid of that in the river. It’ll be my river and I’ll be free to use it as I see fit.